Lochhead v The Queen - [2020] NZCA 668

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA567/2020
[2020] NZCA 668

BETWEEN	JASON HEATH LOCHHEAD Applicant
AND	THE QUEEN Respondent

Court:	French, Whata and Mander JJ
Counsel:	Applicant in person T R Simpson for Respondent
Judgment: (On the papers)	18 December 2020 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Lochhead was convicted in the District Court of family violence offending against his ex-wife following pleas of guilty.[1] Judge Gilbert sentenced him to a term of imprisonment of two years and three months.[2] Mr Lochhead appealed the sentence to the High Court but the appeal was dismissed by Doogue J.[3]
[1]Attempting to dissuade a witness from giving evidence — representative (Crimes Act 1961, s 117(a)); threatening to kill — representative (Crimes Act, s 306); publishing an intimate visual recording (Crimes Act, s 216J); breaching a protection order (Family Violence Act 2018, ss 9, 90(a) and 112(1)(a)); and wilful damage — representative (Summary Offences Act 1981, s 11(1)(a)).
[2]R v Lochhead [2020] NZDC 14301 [District Court decision].
[3]Lochhead v R [2020] NZHC 2334 [High Court decision].
Mr Lochhead now seeks leave to appeal to this Court. Leave is required because the proposed appeal would be a second appeal.[4]
[4]Criminal Procedure Act 2011, s 253.
In a minute dated 21 October 2020, Goddard J directed that the application for leave should be heard on the papers.

Background

Mr Lochhead and the victim were in a relationship for five years and had one child.
In December 2018, the victim obtained a protection order against Mr Lochhead. Despite the order, Mr Lochhead continued to send her multiple voice messages over Whatsapp and on three occasions in August 2019 he went to her address uninvited and refused to leave when asked to do so. On one of those occasions, he punctured the rear tyres of the victim’s car with a knife and on another occasion smashed a bedroom window. This resulted in charges being laid.
While on bail, Mr Lochhead sent the victim a series of abusive text messages threatening violence. At sentencing, the Judge said he could not recall having ever seen a series of texts and threats that were so vitriolic, hateful and graphic.[5] Seven of the messages contained explicit threats to kill the victim, involving threats to slit her throat, cave in her skull, remove her in a body bag and cut off her head.
[5]District Court decision, above n 2, at [12].
Two messages also demanded that the victim go to a police station and withdraw her complaint. If she failed to do that, Mr Lochhead threatened her that he would gain custody of their daughter and the victim would never see her again.
Then on 23 November 2019, without the victim’s permission, Mr Lochhead sent an intimate video taken of her to her mother.
In total, Mr Lochhead faced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lochhead v The Queen

Details

AGLC: Lochhead v The Queen [2020] NZCA 668
Case: [2020] NZCA 668
Decision Date: 18 December 2020 at 9 am

CaseChat Overview and Summary

Jason Heath Lochhead applied for leave to bring a second appeal against his conviction and sentence. The Court of Appeal dismissed the application. Mr Lochhead was convicted of several offences against his ex-wife including attempting to dissuade a witness from giving evidence, threatening to kill, publishing an intimate visual recording, breaching a protection order, and wilful damage. He was sentenced to a term of imprisonment of two years and three months. He appealed to the High Court, which was dismissed. Mr Lochhead now sought leave to appeal to the Court of Appeal. The Court held that leave to bring a second appeal would only be granted if it involved a matter of general or public importance or if a miscarriage of justice may have occurred. The Court did not find that either of these criteria was satisfied. The Court held that the proposed grounds of appeal were specific to Mr Lochhead’s case and did not involve matters of general or public importance. The Court also held that there was no risk of a miscarriage of justice. The Court therefore declined the application for leave to bring a second appeal against sentence.

Orders